
REVISION AND CODIFICATION OF 
THE LAWS RELATING TO THE 
JUDICIARY 


SPEECH 


HON. REUBEN 0. MOON 

OF PENNSYLVANIA 

CHAIRMAN OF COMMITTEE ON REVISION OF LAWS 


IN THE 

HOUSE OF REPRESENTATIVES 




WEDNESDAY, DECEMBER 7, 1910 








WASHINGTON 

1910 


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70530—9473 













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REVISION AND CODIFICATION OF 
THE LAWS RELATING TO THE 
JUDICIARY 


SPEECH 


OP 

. REUBEN 0 

OF PENNSYLVANIA 

CHAIRMAN OF COMMITTEE ON REVISION OF LAWS 



Y 

MOON 


IN THE 

HOUSE OF REPRESENTATIVES 


WEDNESDAY, DECEMBER 7, 1910 


70530—9473 


WASHINGTON 

1910 



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SPEECH 


OF 

HON. REUBEN 0. MOON, 

OF PENNSYLVANIA. 


The House having under consideration the bill (H. R. 23377) to cod¬ 
ify, revise, and amend the laws relating to the judiciary— 

Mr. MOON of Pennsylvania said: 

Mr. Speaker : The bill presented to-day is a second install¬ 
ment of the great work of revision of the laws which has 
been under consideration of this House for a number of years. 
It is not my purpose at this time to recall the history of 
the Revision Commission and the various steps taken by this 
House and by this committee during the last ten years to get 
these bills so perfected that they might be taken up for final 
consideration. All Members here will, I think, remember that 
in the Sixtieth Congress, after nearly ten years of active work, 
we succeeded in securing the revision and codification of the 
laws respecting crimes, or what is popularly known as the 
penal code. 

When this work of revising the laws of the United States 
was originally submitted to it, our committee felt the impos¬ 
sibility of attempting to secure in one bill or during one ses¬ 
sion of Congress the revision of the laws of the United States, 
covering over 9.000 sections. They were reminded of the fact 
that the committee in 1873, at the time the laws were last 
revised, attempted that impossible task, and as a result of that 
attempt the work was rendered absolutely nugatory, and within 
five years from that time a new revision was authorized by this 
House by committing the work to one man, Mr. Boutwell, of 
Massachusetts. 

Therefore we chose to take up separate subjects of the law 
which were capable of a natural subdivision, and for reasons 
not necessary here to refer to we reached the penal code first 
and enacted it into law March 3, 1909. 

Proceeding upon the same lines, Mr. Speaker, the committee 
now presents for the consideration of this House that title in the 
Revised Statutes known as “Title 13—The Judiciary.” This 
bill that you are now asked to consider is confined wholly to that 
subject and relates only to the courts. It contains eleven chap¬ 
ters and embraces the geographical division of the country into 
judicial districts, the organization of the respective Federal 
courts in that territory, the jurisdiction conferred upon these 
courts by the Constitution and under the respective acts of 
Congress and treaties made pursuant thereto, and to certain 
phases of judicial procedure in the exercise of that jurisdic¬ 
tion. 

The bill is reported from the Committee on the Revision of 
the Laws. The report of the Congressional Revision Commis- 
70530—9473 3 



4 


sion was referred to a joint committee of tlie House and Senate 
by Public resolution No. 58. The report of the joint com¬ 
mittee was unanimous in recommending the present bill. It 
was reported to the Senate in March, 1909, and the report to 
the House was referred by the Speaker to the House Committee 
on the Revision of the Laws, which reported it back to the 
House by unanimously adopting the report and recommenda¬ 
tions of the joint committee. 

The joint committee was empowered to revise and codify 
the laws and to recommend changes in existing law. In the 
performance of the work on the bill it met during the recess 
of Congress and spent much time and labor in perfecting it. 
It searched through the Statutes at Large to collect the various 
acts relating to the judiciary, and the bill presented comprises 
many hundreds of pages scattered through numerous volumes 
of these statutes. The work of examining, comparing, eliminat¬ 
ing superfluous and repealed statutes, and codifying them into 
one concrete bill has been laborious, and this bill now before 
you for consideration represents the result of this completed 
work on this title. 

The judicial power of the federal courts of the United States 
has no parallel in any other country in the w^orld. The great 
statesmen who framed the Constitution of the United States 
created their own model. Historic precedent for written con¬ 
stitutions did not exist, and while the philosophic scheme 
adopted by them of a complete separation between the judicial, 
legislative, and executive branches of the Government had been 
alluded to by advanced thinkers upon the science of govern¬ 
ment, no other nation had ever had the courage or the oppor¬ 
tunity to hazard the future of a new State upon its successful 
practical adaptation to human needs. These wise builders 
were schooled in the experience of the strenuous times in which 
they lived. The necessity for a union of the colonies during the 
Revolution and their disastrous experience under the Articles 
of Confederation had taught them the absolute necessity of a 
supreme judicial power, and had led them to realize that that 
judicial power should he equal to and coordinate with the legis¬ 
lative and the executive departments of the Government; and 
they, therefore, by that instrument created a judicial tribunal, 
invested it with an authority and clothed it with a legal power 
unknown to the most advanced nations of the earth—a power 
which in its appropriate sphere is absolutely supreme, from 
whose decree there is no appeal, whose jurisdiction is un¬ 
bounded, extending from the sovereign States to the humblest 
citizen, and embracing in its limitless scope the legislative 
powers of Congress and the executive will of the President him¬ 
self. Therefore, Mr. Speaker, because the provisions of this bill 
relate to this judicial system its importance to the country 
becomes at once apparent. 

The principal feature of this bill and the one to which I de¬ 
sire to call especial attention in these opening remarks is a 
proposed reorganization of this federal judicial system, and 
this reorganization consists in the 'elimination of one of the 
existing courts of original jurisdiction, the Circuit Court, 
and the consolidation of this jurisdiction in the existing Dis¬ 
trict Court. To explain the reasons for this proposed change 
it will be necessary for me to allude briefly to the history of 
70530—9473 


5 


tlie judicial scheme provided for by the Constitution of the 
United States, and completed by the various acts of Congress 
relating to the judiciary. The constitutional provisions respect¬ 
ing a Federal judiciary are as follows: 

Section 1 (Article III). The judicial power of the United States 
shall be vested in one Supreme Court, and in such inferior courts as the 
Congress may from time to time ordain and establish. 

Sec. 2. The judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority; to all 
cases affecting ambassadors, other public ministers, and consuls; to 
all cases of admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party; to controversies between 
two or more States; between a State and citizens of another State; 
between citizens of different States : between citizens of the same State 
claiming lands under grants of different States ; and between a State, 
or the citizens thereof, and foreign States, citizens, or subjects. 

Paragraph 8, section 5 of Article I, under the enumerated 
powers of Congress, provides that the Congress shall have 
power— 

to constitute tribunals inferior to the Supreme Court. 

The Supreme Court is created by the Constitution itself, and 
one of the first acts of Congress was to establish the number 
of judges of which the court should be composed; to assign to 
it jurisdiction, and to create, define, and invest with jurisdiction 
such inferior courts as were necessary to discharge the duties 
of this coordinate branch of the Government. 

On the first day of the opening of the first Congress there was 
introduced in the Senate by Oliver Ellsworth of Connecticut, 
a bill for this purpose, which became a law on September 24, 
1789, and is known in history as the Judiciary Act of 1789. 

After providing that the Supreme Court of the United States 
should consist of one Chief Justice and five associate justices, 
and conferring upon it original jurisdiction in two classes of 
cases and vesting in it final appellate jurisdiction in all cases 
arising under the Constitution and acts of Congress, the bill 
proceeded further to divide the entire territorial domain 
of the United States into judicial districts, and to estab¬ 
lish therein a court, to be known as a district court, and to 
provide for each court a judge, to reside within the district, 
who should be known as a district judge, and to invest this 
court with certain jurisdiction in both civil and criminal causes. 
The next provision of the bill was to group the districts so 
created into three circuits, to be known as the Middle, Eastern, 
and Southern circuits, and to confer certain jurisdiction upon 
these courts in both civil and criminal causes, and in addition 
to this original jurisdiction to invest this circuit court with an 
extensive appellate jurisdiction from the district court, and 
to* provide that such circuit court should consist of two Su¬ 
preme Court justices and the district judge previously pro¬ 
vided for. 

It will be observed, Mr. Speaker, that this act, although it 
created judicial circuits, did not create the office of circuit judge, 
but provided, as before stated, that the judicial authority in 
these circuits should be exercised by two Supreme Court jus¬ 
tices and the district judge; and in this connection I desire to 
state that the office of circuit judge was not created by Con¬ 
gress for a period of SO years, or until 1869, except the creation 
of the so-called midnight judges, by the act of 1801, which was 
70530—9473 


6 


repealed by one of the first acts of the Jefferson administration 
and never went into effect. Immediately after the act of 1789 
became law, President Washington appointed John Jay, of New 
York, Chief Justice of the Supreme Court, and the following- 
named persons accepted commissions as associate justices: John 
Rutledge, James Wilson, William Cushing, John Blair, and 
James Iredell. 

The Supreme Court of the United States met for the first 
time in the city of New York on the first Monday in February, 
1790, and organization was perfected by appointing a clerk, 
and the court then adjourned for want of business. The simple 
and unimposing ceremonies of the opening of this great tribunal 
gave little promise of its future greatness, and it may be inter¬ 
esting to the Members of the House if I read a few lines of 
description of that momentous event from the pen of a very 
distinguished member of my own bar, the Hon. Hampton L. 
Carson, author of “A Plistory of the Supreme Court of the 
United States.” Mr. Carson says: 

Not a single litigant had appeared at their bar. Silence had been 
unbroken by the voice of counsel in argument. The table was un¬ 
burdened by the weight of learned briefs. No papers were on file with 
the clerk. Not a single decision, even in embryo, existed. The judges 
were there; but of business there was none. 

Not one of the spectators of that hour, though gifted with the eagle 
eye of prophecy, could have foreseen that out of that modest assem¬ 
blage of gentlemen, unheard of and unthought of among the tribunals 
of the earth, a court without a docket, without a record, without a 
writ, of unknown and untried powers, and of undetermined jurisdic¬ 
tion, there would be developed within the space of a single century a 
court of which the ancient world could present no model and the 
modern boast no parallel; a court whose decrees, woven like threads 
of gold into the priceless and imperishable fabric of our constitutional 
jurisprudence, would bind in the bonds of love, liberty, and law the 
members of our great Republic. Nor could they have foreseen that the 
tables of Congress would groan beneath the weight of petitions from 
all parts of the country inviting that body to devise some means for 
the relief of that overburdened tribunal whose litigants are now 
doomed to stand in line for a space of more than three years before 
they have a chance to be heard. 

So little was known, Mr. Speaker, of the potential powers of 
this new tribunal, thus so inauspiciously ushered into existence, 
that the great lawyers of the country had little aspiration for 
appointment upon its bench. It is a significant fact and worthy 
of attention that while at this moment the eyes of the American 
Nation are fixed upon President Taft and watching with eager 
interest his appointment to two vacancies upon that bench, and 
while the greatest lawyers of this great land would feel that 
their selection to a position upon this high tribunal would be the 
greatest honor within the gift of the American people, yet in 
the early history of this court its dignity was not understood, 
its transcendent supremacy was not dreamed of, and the lawyers 
of that day had little conception of its greatness. Why, Mr. 
Speaker, I wonder if the lawyers of to-day remember that 
George Washington, during the brief period of his two adminis¬ 
trations, made three appointments as Chief Justice of the 
Supreme Court, and that two of the distinguished lawyers so 
appointed resigned in order to accept more lucrative and more 
honorable positions. John Jay, appointed in 1789, resigned in 
1796 to become governor of the State of New York. Oliver 
Ellsworth, appointed in 1797, resigned in 1801, to become chief 
justice of his native State of Connecticut. Robert H. Harrison, 
originally appointed by Washington as one of the Associate 
70530—9473 


7 


Justices, declined, preferring to accept an appointment to the 
position of chancellor of the State of Maryland, and John Rut¬ 
ledge shortly after his appointment resigned, and the position 
was declined by Charles Coatesworth Pinckney and Edward 
Rutledge, and William Johnson was finally secured as his suc¬ 
cessor ; and in the year 1801, after the resignation of Oliver 
Ellsworth as Chief Justice, President Adams tendered the posi¬ 
tion again to John Jay, of New York, but he declined to accept 
it, and it may be interesting to this House if I read his brief 
lettter to President Adams stating the ground of his declination. 

Jay said: 

I left the bench perfectly convinced that under a system so defective 
it would not obtain the energy, weight, and dignity which was essential 
to its affording due support to the National Government, nor acquire 
the public confidence and respect which, as the last resort of the justice 
of the Nation, it should possess. Hence, I am induced to doubt both 
the propriety and expediency of my returning to the bench under the 
present system. 

Not only, Mr. Speaker, was the power and dignity of this 
great court misconceived by the legal profession, but it seems 
to have been misunderstood both by the legislative and execu¬ 
tive branches of the Government, and early in its existence it 
was obliged to resist encroachments from both of these co¬ 
ordinate powers. In 1791 Congress passed an act to provide for 
the settlement of claims of widows and orphans, and to regulate 
the claims of invalid pensioners, and imposed upon the circuit 
court of the United States certain duties relative thereto, and 
made their action subject to the supervision of the Secretary of 
War and finally to the revision of Congress. The Chief Justice 
of the United States, with Cushing circuit justice and Duane 
district judge, refused to comply, and declared that neither 
the legislative nor the executive branches of the Government 
could constitutionally assign to the judiciary any duties but 
such as were judicial and that were prepared in a judicial 
manner, and that neither the Secretary of War nor any other 
executive officer, nor even Congress, were authorized to sit 
as a court of error. In 1793 President Washington, upon 
the advice of his cabinet, being greatly embarrassed by the 
intrigue of Genet, the French Minister, who was endeavor¬ 
ing to involve this country in war in connection with the French 
revolution, requested of the Chief Justice of the Supreme Court 
an opinion as to the proper construction of the treaty with 
France. He requested advice upon certain legal questions most 
interesting and important. Twenty-nine inquiries carefully 
formulated were submitted—questions of international law, 
condemnation prizes, etc. To these the Chief Justice declined 
to comply and asserted with dignity that it would be improper 
for them to anticipate any case which might arise or indicate 
their opinion in advance of argument. 

In the early days, therefore, Mr. Speaker, no man clearly 
foresaw the scope of this new tribunal, but after the lapse 
of more than a century we are able to form a just judg¬ 
ment of the wisdom of our judicial scheme. The achievements 
of the Supreme Court of the United States as one of the co¬ 
ordinate branches of the Federal Government have more than 
realized the expectation of the founders of the Nation. It has 
discharged the fullest measure of its duty in the extension and 
development of the country. Without ostentation and with no 
70530—9473 


8 


physical power to coerce, it has summoned before its bar the 
sovereign States of the Nation and has declared their laws un¬ 
constitutional and void. It has subjected to its judicial investi¬ 
gation the acts of Congress passed by us and has decreed the 
limit of our legislative powers. It has by a bold legal interpre¬ 
tation imbued a rigid written Constitution with elasticity and 
life and molded it to the amazing changes of a progressive cen¬ 
tury, without in any degree impairing its stability as the char¬ 
tered guardian of our national freedom; it has blazed the way of 
American progress by judicial decisions that have become the 
accepted and acknowledged guides of legislation, and when we 
look to find the constructive law of this nation we look for it, 
not alone in the statutes of the American Congress, but in the 
decisions of that great court. In Marberry v. Madison, Gib¬ 
bons v. Ogden, Cohens v . Virginia, McCullough v. Maryland, 
Trustees of Dartmouth College v. Woodward, the Northern 
Securities case, and a hundred other Supreme Court decisions, 
we find the accurate bounds of constitutional and legislative 
power and the true legal principles that guide and control our 
national growth and progress; and at this moment the great 
commercial, financial, and industrial organizations of the whole 
country are waiting with intense anxiety the decision of that 
court in two great cases pending therein, which may revolu¬ 
tionize the established fabric of corporate activity as it now 
exists in this country and exercise a potential influence upon 
the industries of the world. 

Mr. Speaker, the jurisdiction of the Supreme Court provided 
by the act of 1789 was almost wholly appellate. The court 
was in existence and ready to discharge its high functions, but, 
as Mr. Carson has so eloquently explained, there was not a 
single case upon its docket, and the first work of the Supreme 
Court Justices was therefore done on the trial of cases in the 
exercise of the original jurisdiction of the circuit court. 

To carry out the provision of the judiciary act which as¬ 
signed two Supreme Court Justices to each circuit, Chief Jus¬ 
tice Jay and Associate Justice Cushing took the eastern cir¬ 
cuit, Wilson and Blair the middle circuit, and Rutledge and 
Iredell the southern circuit, and in this capacity and in this 
order they began to lay the foundation of that judicial system 
which was soon destined to command the wondering admira¬ 
tion of the philosophical historian and to challenge the respect 
of the tribunals of the world. 

The work in its beginning was strenuous and exacting, 
and I have no doubt that the difficulty in obtaining lawyers 
willing to accept this exalted position was in no small de¬ 
gree due to the rigors and hardships incident to this peri¬ 
patetic judicial life. William Wilson, of Pennsylvania, one of 
the framers of the Constitution, and one of the greatest lawyers 
of his day, and one of the most illustrious of the Supreme Court 
Justices, lost his life while traveling in the southern circuit to 
assist his brother Iredell in the work of that circuit. But the 
foundation of our great judicial system was laid by these men 
in the circuits. Many of the most important trials in our early 
history were conducted by the justices of the Supreme Court in 
these circuits. The memorable trial of Aaron Burr for treason 
was held in the circuit court at Richmond, Va., with John 
Marshall, then Chief Justice, presiding, and in the trial of that 
70530—9473 


9 


case was established by him a legal definition of treason which 
has become the recognized law of the land. 

These were the palmy days of the circuit court. The people 
of the States knew little of the central court at Washington, 
and they resented its existence; they feared its power. They 
were slow to recognize the necessity of a court outside of the 
jurisdiction of their own State and administering laws other 
than the laws of their own creation, and the sessions of the 
circuit courts in the various towns and cities in the circuits 
where it was held were made the occasion by the justices of the 
Supreme Court of acquainting the people with this new dual 
system of government, of reconciling them to Federal jurisdic¬ 
tion, and of enlightening them upon the chief political topics 
of the day. It was known long in advance, and on that day 
the people from the surrounding towns and cities flocked to the 
courthouse to witness the great sight of the opening of the cir¬ 
cuit court, upon the bench of which sat two justices of the 
Supreme Court and the judge of the district court. I hold in 
my hand an extract from a newspaper, entitled the “United 
States Oracle of the Day,” published at that period, describing 
the opening of the circuit court in Portsmouth, N. H., as 
follows: 


Circuit court. On Monday last the circuit court of the United States 
was opened in this town. The Hon. Judge Paterson presided. After 
the iury were imnaneled the judge delivered a most elegant and appro¬ 
priate charge. The law was laid down in a masterly mamier. Poli¬ 
tics were set in their true light by holding up the Jacobins as the dis¬ 
organizes of our happy country 'and the only instruments of intro¬ 
ducing discontent and dissatisfaction among the well-meaning parts of 
the community. Religion and morality were pleasingly inculcated and 
enforced as being necessary to good government, good order, and good 
laws ; for “ when the righteous are in authority, the people rejoice.” 

We are sorry that we could not prevail upon the honorable judge to 
furnish a copy of said charge to adorn the pages of the “ United States 
Oracle.” 

After the charge was delivered, the Rev. Mr. Alden addressed the 
throne of grace in an excellent and well-adapted prayer. 


To the lawyer of the present day, familiar with the crowded 
calendar, the business atmosphere and the rapid performance 
of judicial duties in our Federal courts, this picture of a court 
holiday, a political address from the bench, and a closing prayer, 
affords a striking commentary upon the changes wrought in 
judicial procedure by the lapse of a hundred years. 

The district court, Mr. Speaker, was inaugurated with no 
imposing ceremonies; it was unostentatiously domiciled in the 
cities and towns of the country. The judiciary act of 1789 had 
created the district as the unit of the Federal judicial system. 
The territorial area of the country was divided into 18 judicial 
districts and a district judge was appointed in each, who was 
required by law to be a resident of the district from which he 
was appointed. The jurisdiction of this court, both civil 
and criminal, was extensive—exclusive in some cases—and 
concurrent with the circuit court in a large additional class 
of cases, both at common law and in equity. The definite 
location of this court, the fact that the judge was a resi¬ 
dent within the district, and that it came more intimately 
in toueh with the people of the various States and reached 
their most frequent needs, tended to popularize this new 
tribunal and to reconcile the people to the hitherto strange 
Federal jurisdiction. The additional fact that the district 
judge was also a constituent member of the circuit court and 


705.”,0—0473 


10 


participated in the work of that court at all of its sessions laid 
a foundation for the recognition and development, in the State 
and among the people, of the necessity and adaptability of a 
dual system of jurisprudence, and led to an understanding of 
the principles of an allegiance to two distinct sovereignties— 
a State and a Federal. 

The Federal judicial system thus launched and thus or¬ 
ganized was an experimental one. It had no precedent in 
the judicial history of the world. Experience and actual 
trial could alone test its defects or give assurance of its w r is- 
dom. Tested by actual experience in the field of its operation, 
weaknesses were developed and acts of Congress from time to 
time passed to correct them.. The Supreme Court had practi¬ 
cally no original jurisdiction and was created by the Constitu¬ 
tion as a court of last resort on appeal. Its supreme exercise 
of appellate power was the basis of its existence. The circuit 
court, in addition to its original jurisdiction, was also a court of 
extensive appellate jurisdiction, the judiciary act having vested 
it with such jurisdiction in all cases arising in the district 
court where the amount involved exceeded the sum of $50, and 
in all cases of admiralty and maritime jurisdiction where the 
amount involved exceeded $300. The district court was the only 
court whose jurisdiction was wholly original. As I have before 
shown, Mr. Speaker, when this judicial system was inaugurated, 
there was no appellate jurisdiction to be exercised by either the 
Supreme Court or the circuit court. No case had been tried. No 
errors had been committed. No ground existed any where for ap¬ 
peal. This fact was apparent, and therefore no circuit judges 
were created. The Supreme Court became a court of nisi prius 
and went out into the judicial circuits in a series of State trials to 
enforce the laws in the exercise of its original jurisdiction and 
to make the records out of which should grow the appeals 
which should finally be adjudicated by them as justices of the 
Supreme Court in the exercise of that appellate jurisdiction. 
But, Mr. Speaker, even the constitutional right of a Supreme 
Court justice to sit in the circuit court was so uncertain that 
it at one time became of itself a subject of litigation; and in 
a noted case, the case of Stuart v. Laird, reported in First 
Cranch, Chief Justice Marshall seriously questioned the consti¬ 
tutionality of such an assignment, but decided that practice and 
acquiescence for a period of many years, commencing with the 
organization of the judicial system, had fixed the construction 
and that this cotemporary and practical exposition was too 
strong to be shaken or controverted. 

The country expanded rapidly. New and vast subjects for 
the exercise of Federal power by the courts were developed, and 
what was originally supposed by the founders of the Govern¬ 
ment to be a limited Federal jurisdiction became one of stupen¬ 
dous scope. The docket of the Supreme Court, originally with¬ 
out an entry, began to grow. The judges of that court were 
necessarily gradually withdrawn from the circuit. The fact 
that certain members of the court had sat in the original case 
out of which grew the pending appeals tended to weaken the 
force of their final adjudication. The trial of causes in the dis¬ 
trict court began to multiply, and as these dockets increased in 
size appeals from its decisions became more and more numerous, 
and thereby the appellate work of the circuit court developed 
70530-—0473 


11 


and grew rapidly. And it can be easily understood that the 
gradual withdrawal of the Supreme Court justices from the cir¬ 
cuit court devolved more and more work of that court upon the 
district court judge, because it must be remembered that, up 
till this time, there was no circuit court judge created and that 
the district court still consisted of a supreme justice and a 
district court judge. 

As early as 1792 Congress modified the necessity for the con¬ 
stant attendance of the Supreme Court justices in the circuit 
court; and by the act of 1793 they limited to one instead of 
two the number of Supreme Court justices that should com¬ 
pose the circuit court, such action having been made necessary 
by the gradual growth of the docket of the Supreme Court 
itself. This unsatisfactory condition of the judicial system was 
intensified as the years went on and the country increased and 
subjects of Federal jurisdiction multiplied until, by the act of 
April 10, 1869, a practical reorganization of the system was 
effected. 

It was provided by that act that there should be created a 
circuit judge in each of the nine circuits, who was given the 
same power as that possessed by the Justice of the Supreme 
Court allotted to that circuit. It further provided that there¬ 
after the circuit court in each circuit should be held by the 
Justice of the Supreme Court allotted to that circuit or by the 
circuit judge or by the district judge of the district sitting 
alone; and by a further provision limited the duties of the Su¬ 
preme Court Justice in the circuit court to a visit of once in two 
years. The change in our system of jurisprudence as effected by 
this act can be readily seen. The pristine dignity of the circuit 
court was diminished by the loss of the Supreme Court Justice. 
Its real usefulness was increased by the addition of a circuit 
judge, who would always be present in the circuit. Its future 
extinction was foreshadowed by the fact that its whole func¬ 
tions might thereafter be discharged by a district court judge 
sitting alone. 

Now, Mr. Speaker, let us observe for a moment a practical 
operation of this system under the act of 1869. The Justices of 
the Supreme Court of the United States were practically with¬ 
drawn from the circuit, their time wholly occupied in the dis¬ 
charge of their constitutional powers as the court of last ap¬ 
peal. The circuit court of the United States with an extensive 
appellate jurisdiction from the district court, was largely 
occupied in the exercise of that jurisdiction. It had but one 
circuit judge in a circuit of vast area, yet it still possessed 
and must still exercise a large original jurisdiction and it might 
be, and frequently was, constituted by a district court judge 
sitting alone. The district court continued to exercise the orig¬ 
inal jurisdiction conferred upon it by the act of 1789 and by 
the large number of acts of Congress passed since that time 
by which such increased original jurisdiction has been con¬ 
ferred. 

This was the state of our judicial machinery and its prac¬ 
tical operation after that time. Unsatisfactory as such a 
system doubtless was, and unsystematic in its distribution of 
the judicial business of the country and imperfect in its power 
to administer the Federal law, little complaint was heard 
as to its operation. But, Mr. Speaker, a new difficulty arose— 
70530—9473 


12 


one doubtless entirely unforeseen by the framers of that sys¬ 
tem—the marvelous expansion of Federal power, created by 
acts of Congress and judicial construction; the creation of 
new arts; the invention and application of new agencies in 
commerce and in the industries; the rapid settlement of the 
country and the phenomenal increase in population, so rapidly 
multiplied the number of cases brought to the Supreme Court 
of the United States, that its dockets became overcrowded. 
The court was utterly unable to keep pace with the judicial 
growth of the nation. Justice was so long delayed and the 
settlement of the new legal principles so constantly arising and 
so essential to the national growth so long deferred, that Con¬ 
gress was petitioned from all sections of the country for relief 
and redress. 

The growth of the appellate work of the Supreme Court had 
been slow. In 1801, when Chief Justice Marshall was ap¬ 
pointed, the number of cases brought into it for adjudication 
was only 10 and the number during the five following years 
was 120, or an average of 24 a year. Within the five years 
ending in 1850, the number of cases brought into the court was 
357, or an average of 71 a year, and Associate Justice Field, 
speaking on the occasion of the centennial celebration of the 
organization of the Supreme Court of the United States, in 
1890, said: 

Up to the middle of the present century the calendar of the court 
did not average 140 cases a term and never amounted at any one term 
to 300 cases. The calendar of the present term exceeds 1,500 cases. 
In view of the condition of the court, its crowded docket, the multi¬ 
tude of questions constantly brought to it of the greatest and most 
extended influence, surely it has a right to call upon the country to 
give it assistance and relief. Something must be done in that di¬ 
rection and should be done speedily to prevent the delay to suitors 
now existing. To delay justice is as pernicious as to deny it. 

Mr. Speaker, this universal demand for relief resulted in the 
introduction into this House a few months later, in April, 1890, 
of a bill entitled: “An act to define and regulate the jurisdic¬ 
tion of the courts of the United States.” This act provided in 
the first section for the total abolition of all of the original 
jurisdiction of the circuit court of the United States and 
the vesting of that jurisdiction in the district court. It 
provided further for the creation in each judicial circuit of 
the United States of a court to be known as the circuit 
courts of appeals, to consist of three judges in each circuit. 
The jurisdiction of this circuit court was to be wholly appellate 
and was formed by taking from the existing circuit court all 
of the appellate jurisdiction exercised by it, and by taking from 
the Supreme Court of the United States exclusive appellate 
jurisdiction in a very large number of cases then vested in that 
court and vesting final jurisdiction in this new court; and it 
also further provided for the creation of 18 additional circuit 
judges to fill the positions created in the new court. 

This bill was reported from the Judiciary Committee and was 
passed by practical unanimity in the House (only 13 votes 
being recorded against it) on the 15th day of April, 1S90, and 
was sent to the Senate of the United States. That body did not 
concur in the bill. It devised a different method for relieving 
the pressure upon the Supreme Court. It followed practically 
the provisions of the House bill in the creation of the nine new 
appellate courts. It refused to adopt that portion of the bill 
70530—9473 


13 


which abolished the original jurisdiction of the circuit court. 
The bill came back from the Senate in the closing days of 
the Congress, and on the 3d day of March, 1891, the day before 
the expiration of that Congress, the report of the conference 
committee was brought before the House for consideration. 
The House at that time was very reluctant to accept the 
amendment of the Senate bill, and several Members of the 
House having charge of the bill declared that their only reason 
for acquiescing in the conference report, which accepted the 
Senate provisions, was that the necessity for the relief of the 
Supreme Court was so great that something must be done at 
once, and that to refuse to accept the Senate amendment at 
that time would necessarily defer the adoption of any act for 
its relief, and that they adopted the bill with the Senate amend¬ 
ment with full knowledge of the fact that it left the judicial 
system in a defective condition and with the confident expecta¬ 
tion that a future Congress, at some early time, would correct 
the mistake that they were then making. 

This act of March 3, 1891, did relieve the Supreme Court of 
the United States. The new courts of appeals have become 
great courts, useful and effective. They exercise final jurisdic¬ 
tion in a very large number of cases with entire satisfaction to 
the whole country. But the defect of that act in continuing the 
original jurisdiction of the circuit court has grown more and 
more obvious year by year. The present status of the courts of 
the United States is as follows: 

One Supreme Court consisting of a Chief Justice and eight 
Associate Justices. 

Nine Circuit Courts of appeals, one in each judicial circuit, 
consisting of three judges each. These courts may be com¬ 
posed of the Chief Justice of the United States, the Associate 
Justice allotted to the circuit, the circuit judges within the cir¬ 
cuit, and the district judges within the circuit, any two of 
whom may constitute a quorum. 

Seventy-seven Circuit Courts, one in each judicial district, 
which courts are required by acts of Congress to be held in 276 
different places in the said circuits. 

Seventy-seven District Courts, which are required by acts of 
Congress to be held in 276 different places. 

There are now 29 Circuit judges who are qualified by law to 
perform the work of both the circuit courts and the circuit 
courts of appeals. 

There are 90 District judges who are required by law to per¬ 
form the entire work of the district courts and who by the act 
of 1869 are qualified to hold a circuit court sitting alone and by 
the act of 1891 are made constituent parts of the circuit courts 
of appeals. 

There are in addition to these courts of general jurisdiction 
three special courts of the United States—a Court of Claims, 
created by the act of 1855, consisting of a chief justice and four 
associate justices; a Court of Customs Appeals, created by the 
act of 1909, consisting of a presiding judge and four associate 
judges; and a Commerce Court, created by the act of 1910, con¬ 
sisting of five circuit court judges, who are especially provided 
for in the act. 

These courts, however, are courts of limited jurisdiction, 
created for special purposes, and their powers and functions are 
derived entirely from the acts creating them, 

70530—9473 


14 


As has been seen, by acts of Congress, in each of the 276 
places in which the courts must be held, there is a provision for 
holding both the circuit and district court and in each of these 
276 places are maintained the organization and machinery of 
these two respective courts, both of which are courts possessing 
only original jurisdiction. 

The jurisdiction conferred by acts of Congress upon these 
courts is, in a large majority of cases, concurrent, and in a 
comparatively few cases is exclusive jurisdiction conferred 
upon them. This jurisdiction differs very little in char¬ 
acter and is distinguished by no controlling principle. They both 
have jurisdiction of civil and criminal cases, the only distinc¬ 
tion being that the circuit court has exclusive jurisdistion in 
capital cases. In some cases the line of demarcation is simply 
the amount involved in the litigation; in some cases there exists 
a mere arbitrary division, giving the admiralty and maritime 
jurisdiction exclusively to the district courts, and matters relat¬ 
ing to revenue to the circuit courts; and during the past 25 
years few, if any, acts of Congress have been passed that con¬ 
ferred jurisdiction upon courts in which the same jurisdiction 
has not been conferred upon both the circuit and the district 
courts. The chief original distinction between the circuit and 
district court as created by the act of 1798 was that the circuit 
court was then invested with a large appellate jurisdiction from the 
decisions of the district court and when the act of 1891 took away 
from the circuit court this appellate jurisdiction there no longer 
existed any reason in law or in principle for its continuation. 

It is true that the circuit court is an historic court. It 
occupied a unique and useful position in the original judicial 
scheme. It played a conspicuous and honorable part in the 
introduction and upbuilding of the Federal system in the Na¬ 
tion. It afforded in those early days a notable and inspiring 
illustration to the citizens of the State of the parental care of 
the new Nation in sending among the people of the States the 
most notable judges of the land to administer justice to them. 
But the glory of its early days necessarily rapidly declined. 
The act of 1793, which withdrew one of the justices from the 
circuit, weakened its importance. The act of 1869, which cre¬ 
ated the circuit court judge and made the district judge alone 
competent to hold a circuit court, and practically withdrew both 
Supreme Court justices, pointed to its rapid decadence. The 
act of March 3, 1891, which took from it all of its appellate 
jurisdiction and relegated it to a court of limited scope and 
powers already exercised by the District Court, completed its 
final overthrow and made the House bill of 1890, which pro¬ 
vided for its entire extinction from the judicial system, a 
matter of prime necessity. 

Let us examine carefully the actual operations of the two 
courts as they exist side by side in every subdivision of every 
district throughout the country to-day, numbering 276. In this 
vast territory there are 29 circuit court judges—residing in nine 
judicial circuits—upon whom is devolved the large and rapidly 
increasing labors of nine circuit courts of appeal. The eighth 
judicial circuit embraces 13 States, comprising an area vastly 
greater than that occupied by the whole Nation when the judi¬ 
ciary act of 1789 was passed. The ninth judicial circuit exer¬ 
cises in addition to its regular jurisdiction appellate jurisdic- 
70530—9473 


15 


tion from the Treaty Court in China, and the district courts of 
the Hawaiian Islands and is the supreme court of the District 
of Alaska. The third judicial district is about to assume appel¬ 
late jurisdiction from the courts of Porto Rico. A circuit 
court judge who sits in the trial of causes in his court of original 
jurisdiction is disqualified from sitting in his circuit court of 
appeal when such cases come before it, and in order to maintain 
a full bench a district judge in the circuit must be taken from 
his work in the district to sit with the other circuit court judges. 

The district court judges now perform substantially all of the 
work of the circuit court in every circuit in the land. Your 
committee made a careful investigation of this subject. They 
addressed, through the Department of Justice, letters to all of 
the circuit court clerks of the country, and found from official 
information thus obtained the following fact: In the year 1908 
out of a total of 18,000 days on which circuit courts were held 
throughout the United States, the circuit judge sat in those 
courts only about 2,000 days, or about 11 per cent of the time, 
while for the remaining 16,000 days the court was presided over 
by the district judge. In 22 States circuit courts were held 
exclusively by the district judges, and in six other States the 
total aggregate of days in which the court was held by the cir¬ 
cuit judge did not exceed two days for each State. Even this 
statement does not show with entire accuracy the extent of the 
abandonment by the circuit court judge of the work in his court 
of first instance, because of the 2,000 days placed to his credit a 
substantial portion of that time was employed in hearing mo¬ 
tions and in discharging the duties of the circuit court in the 
city in which he lived. Mr. Speaker, this statement carries with 
it no imputation of neglect of duty on the part of the circuit 
judges. No more conscientious, industrious, and self-sacrificing 
body of judges exist in the world than the circuit judges 
of the United States. They have neither the time, the strength, 
nor the means to travel over these thousands of miles of terri¬ 
tory and sit in the 276 places that Congress has fixed for hold¬ 
ing circuit courts, and there exists absolutely no reason why 
they should do it. 

In every district resides a district judge. Under the act of 
1869 he is as fully qualified to hold a circuit court sitting alone, 
as in the circuit court judge. He is equally learned in the law. 
He has a better acquaintance with the people and the environ¬ 
ments of the causes arising in the district, and he has the time 
to transact the business, and he has now for a number of years 
conducted these courts to the entire satisfaction of the respec¬ 
tive communities and to the honor and credit of the Government; 
while if the 29 circuit court judges should attempt the impossible 
task, it would so delay and obstruct the work of the circuit court 
of appeals as to defeat the purpose of the act of 1891, and would 
bankrupt the judges themselves to pay their traveling expenses. 
Yet, because under existing laws certain exclusive original 
jurisdiction is given to the circuit courts, there is necessarily 
maintained in every district of the United States, and in every 
division thereof, the complete machinery of a circuit court, con¬ 
sisting of court rooms, clerks, dockets, marshals, and all of the 
extensive and expensive features of a court organization. The 
commingled jurisdiction between it and the district courts is 
perplexing and oftentimes confusing to litigants and attorneys. 

70530—9473 


16 


Its exclusive jurisdiction is not based upon any organic principle 
of distinction, and there exists no longer any reason either in 
theory or practice why the original jurisdiction of this court 
should be maintained. 

The reorganization of the courts, therefore, as provided by 
this bill will substitute for the present cumbersome, imprac¬ 
ticable, confusing, and expensive judicial system a simple, con¬ 
crete, elastic, and logical one; will eliminate a court of original 
jurisdiction wholly unnecessary and in practical operation long 
since fallen into disuse. It will not displace a single judge or 
change the present general practice of the courts. It will sim¬ 
plify the proceedings by consolidating jurisdictions and by hav¬ 
ing all cases in courts of first instance and all pleadings filed 
therein brought and filed in the district court, and will preserve 
the same plan of judicature originally designed by the framers 
of the Constitution and adopted by most of the States, to wit, 
one court of original jurisdiction, an intermediate court of ap¬ 
pellate jurisdiction—final in many cases—and the Supreme 
Court as the court of last resort. 

Certain provisions contained in the bill make the plan recom¬ 
mended in this revision as fully elastic as the present system 
and avoids the necessity for the creation of any new judges. 
It is provided that if in any district the work devolving upon 
the district court is too heavy to permit its prompt transaction 
by the district court judge, a circuit court judge, not fully occu¬ 
pied, may be designated to perform the work as a district judge 
under exactly the same principles and regulations as district 
court judges now perform the work of circuit court judges. 
The plan has been recommended by the American Bar Associa¬ 
tion and by many of the leading lawyers and judges of the coun¬ 
try, was once adopted by this House, and we hope it will now 
become law. 

Mr. MANN. Will the gentleman allow an interruption? 

Mr. MOON of Pennsylvania. Certainly. 

Mr. MANN. In the last railroad bill that we passed we pro¬ 
vided in reference to the issuing of writs of injunction that the 
district judge should call in a circuit judge to help him pass 
upon the matter of dissolving or maintaining interlocutory in¬ 
junctions. The gentleman from Pennsylvania has stated that 
in the eighth circuit—and, of course, that is an extreme case— 
these judges receive no extra compensation, but do receive 
traveling expenses when away from home at some other point 
in the State to sit as a circuit judge. Is there not any way of 
remedying that matter at an early date? 

Mr. MOON of Pennsylvania. I hope it may be remedied, but 
we have not proposed any change of this kind. 

Mr. MANN. The way you remedy it is to abolish district 
court judges. 

Mr. MOON of Pennsylvania. We do not abolish any judge. 

Mr. MANN. No; you do not abolish the individuals, but you 
abolish them as circuit court judges by that title and create a 
court of appeals of which they are the judges. 

Mr. MOON of Pennsylvania. That is already created. We 
do not change the nomenclature of the judges. 

Mr. MANN. I beg the gentleman’s pardon. I think the gen¬ 
tleman will find that his bill does change the nomenclature 
and calls them judges of the court of appeals. 

70530—9473 


17 

Mr. MOON of Pennsylvania. But we do not change the 
nomenclature. 

Mr. MANN. I had a letter from the Attorney General this 
morning, and the gentleman from Pennsylvania is entirely 
familiar with it. The judge sitting in a circuit court of ap¬ 
peals gets $10 a day and traveling expenses; but if called upon 
to go to St. Louis or St. Paul or some other point under the 
railroad law to do something that must be done, he has to pay 
that expense out of his own pocket. 

Mr. PARSONS. If the gentleman from Pennsylvania will 
allow me, I want to say that the title of the judges is not 
changed. Section 116 of this bill itself provides that they 
shall be circuit judges. 

Mr. MOON of Pennsylvania. That is right; it does not affect 
that. 

Now, Mr. Speaker, as I have said, under the act of 1S69 all 
or practically all the work of the courts in the first instance is 
(lone by the district judges. Those of you familiar with the 
practice in the federal courts have often seen a procedure 
which we seek to avoid. The district judge is sitting trying 
district business. In the course of the day the district calendar 
will be completed; no other case being ready for trial, the dis¬ 
trict court is adjourned. The judge, without leaving the bench, 
calls in another clerk, who brings in another docket, and, in 
many cases, another crier, and the crier proceeds to open the 
circuit court, and the district judge, without changing his 
seat, proceeds to dispose of the circuit court docket. In 276 
places in this country are maintained the paraphernalia of a 
circuit court while nearly the entire business is transacted by 
the district judge. 

Mr. MADDEN. Will the gentleman permit a question? 

Mr. MOON of Pennsylvania. Certainly. 

Mr. MADDEN. Would the proposition that the committee 
recommends take the circuit judges out of the circuit court 
work and confine their efforts to the work of the appellate 
bench? And if it did, would not that necessitate the appoint¬ 
ment of a lot of new district judges? 

Mr. MOON of Pennsylvania. I have just explained the fact 
that it will not require the appointment of a single additional 
judge. 

Mr. MADDEN. If you take the circuit judges away from 
their original work would not that original work have to be 
done? 

Mr. MOON of Pennsylvania. My back was turned to the 
gentleman, and he did not hear what I said. I explained that 
in the first place 80 per cent of all that work is now done by 
the district judges, and that we have a provision that when¬ 
ever, in any district, the work accumulates the Supreme Court 
justice assigned to that circuit, or the circuit court judge, 
senior in commission, may designate a circuit judge to sit in 
the district court and relieve the district judge. Therefore, 
the machinery is so complete that it does not require a single 
additional judge. We employ the energy and the time of the 
corps of judges existing in the United States just exactly as . 
they are employed to-day. 

Mr. MANN. Now, on that point, my understanding is that 
a good many of the circuit judges now take jurisdiction of 
70530—9473-2 



18 


causes involving large receiverships. I do not mean for the 
purposes of getting the receiverships, hut- 

Mr. MOON of Pennsylvania. Covering a broad area of 
territory. 

Mr. MANN. Yes. Those cases involve a good deal of labor, 
require a good deal of time on the part of the judge. Of course, 
the work is usually done in chambers. As I understand this 
bill, that power would be taken away from the circuit judges. 

Mr. MOON of Pennsylvania. I am glad the gentleman has 
asked that question, because it brings to my mind what I ought 
to have explained, the one exception in which an original juris¬ 
diction is retained by the circuit judge. It is not an exception 
to the abolition of the circuit courts, but a case in which a cir¬ 
cuit judge retains original jurisdiction. It is true that there 
has been in the past, may be in the present, and there doubtless 
will be in the future, litigation which involves the appointment 
of receiverships for roads that travel not only across one, two, 
three, or four districts, but States and circuits, and the question 
was raised as to how a district judge could handle a proposition 
of that kind by the appointment of a receiver in a judicial dis¬ 
trict. Let me state, in the first place, that under the law a cir¬ 
cuit judge sitting in a district can not make a decree that is 
territorially any broader than the district, except where there 
happens to be two districts in a State. 

That is, the territorial effect of the decree appointing a re¬ 
ceiver by a circuit judge sitting in a district is in itself no 
broader than the district. They broaden it in this way, and 
very properly. A man seeking the appointment of a receiver 
will file with the circuit court judge in a particular district a 
bill for that purpose and will at the same time and place sub¬ 
mit to the judge ancillary bills to be filed in the other districts 
of the circuit. The judge, when he makes the decree appoint¬ 
ing the receiver will forthwith send that bill and decree to the 
clerk of every circuit court in that circuit in which any property 
affected may lie, with an order directing that decree shall be 
entered. That is the way it is accomplished. Now, we seek to 
accomplish it practically in the same way. We realize the 
fact that it was impractical; it was unwise, at least, to permit 
a district judge, sitting in one circumscribed district, to ap¬ 
point a receiver whose jurisdiction would be broader than the 
district and perhaps broader than the circuit. We have there¬ 
fore provided by the bill that when an appointment of a re¬ 
ceiver covering this extensive territorial area shall be made 
the judge in the first instance may make the appointment to 
preserve the property and maintain the status quo and then this 
must be confirmed by the circuit judge within 30 days. I will 
not go into details, as the gentleman from Illinois wanted to 
know chiefly the manner in which the committee have met the 
proposition, thereby securing to the circuit judge a super¬ 
vision over that condition of affairs. 

Mr. MANN. I want to meet both propositions, that and also 
the question as to whether it was desirable to utilize some of 
the time and effort of some of the circuit judges in handling 
.these large cases that were handled mostly in chambers, in¬ 
stead of saying they could not do any of that work, but must 
confine their work to the circuit courts of appeals. 

. 70530—0473 



19 


Mr. MOON of Pennsylvania. Well, I will say to the gentle¬ 
man in answer to that that there were really two opinions in the 
committee. I talked a few days ago with one of our eminent 
judges, a man perhaps of as large experience in that particular 
line of work as any other in the country, and he suggested to 
me that we should still leave that jurisdiction directly with the 
circuit judges. Our plan is open to amendment upon the floor 
of the House, and I bespeak for that section and for the whole 
bill the most careful consideration of every Member of this 
House to help us perfect it. It was the joint judgment of our 
committee that the method proposed was effective and the best; 
but, as I say, it is open to amendment, and I will be very glad 
to have the gentleman’s assistance. 

Mr. MANN. I have no definite information on the subject. 

Mr. STERLING. Could that be done and still abolish the 
circuit courts? 

Mr. MOON of Pennsylvania. We take away the original 
jurisdiction of the circuit courts, but otherwise do not touch 
them. 

Mr. STERLING. You do not abolish the judges, but you do 
abolish the circuit courts. 

Mr. MOON of Pennsylvania. AYe do not assign any original 
jurisdiction to the circuit courts. 

Mr. STERLING. They have no original jurisdiction at all, 
then? 

Mr. MOON of Pennsylvania. We can give them any juris¬ 
diction we choose. 

Mr. STERLING. But you do not in this bill. 

Mr. MOON of Pennsylvania. \A r e do not give them original 
jurisdiction in the trial of causes, but if we want to retain 
original jurisdiction in the appointment of receivers, it is in the 
power of Congress to do it. There is nothing in our bill that 
denies jurisdiction; it is only that we do not confer it, but we 
have the power to confer it where we choose. 

Mr. STERLING. They will not have any unless we confer 
it by law? 

Mr. MOON of Pennsylvania. No. 

Mr. STERLING. Would it be wise to preserve the circuit 
courts simply for the purpose of appointing and controlling 
receiverships? 

Mr. MOON of Pennsylvania. We do not preserve the circuit 
courts, but we can give to the circuit judges that power in 
equity. The committee has not seen wise to do it, and I say 
that it is open to amendment and we want the best judgment 
of every Member of this House in its consideration, and we will 
take that up at the time it comes before us. 

Mr. MANN. I want to ask the gentleman if the committee 
had a report on the number of cases decided by the various 
courts of appeal for any specified time? • 

Mr. MOON of Pennsylvania. No. 

Mr. MANN. Showing how much business the different cir¬ 
cuit courts of appeals had really transacted. Of course that 
goes into the question as to whether the judges’ time was oc¬ 
cupied fully. 

Mr. PARSONS. The index of the annual report of the At¬ 
torney General each year gives that. 

70530—9473 


20 


Mr. MANN. I understand that, but I ask whether the com¬ 
mittee had anything of that kind before it. 

Mr. MOON of Pennsylvania. We had that before us, and 
whenever we thought it necessary resorted to it. 

Mr. MANN. Of course I do not want to criticize the com¬ 
mittee, but simply ask if you had anything on that subject that 
you want to present to the House? 

Mr. MOON of Pennsylvania. The committee did consider it, 
but we had not made any special report on the subject. 

Mr. MANN. How about these circuits where they have four 
judges? 

Mr. MOON of Pennsylvania. If there is an idle judge, he 
should be assigned to district court work. He will be assigned 
to district court work, and the other three would be on the cir¬ 
cuit court of appeals. 

Mr. MANN. He can not be assigned to that work against 
his will. 

Mr. MOON of Pennsylvania. We provide that he can not 
evade or escape that work. 

Mr. MANN. He can evade service if he wants to, and most 
of them do it, sometimes. But did you make any provision 
as to that? 

Mr. MOON of Pennsylvania. We could not do that. 

Mr. MANN. Do you make any provision of that kind? 

Mr. MOON of Pennsylvania. We do not. 

Mr. MANN. But you continue the judges? 

Mr. MOON of Pennsylvania. The gentleman can easily un¬ 
derstand that they can be abundantly employed. 

Mr. MANN. Well, I can not admit that. I think many of 
them are not abundantly employed now. 

Mr. MOON of Pennsylvania. I will say this to the gentle¬ 
man, that we had in contemplation that there should not be 
an idle circuit judge, but that he should be assigned to the 
work of a district judge. One of the judges wrote me, if con¬ 
fined to work in the appellate court, he would be occupied but 
half of his time, and urged the insertion of the provision as¬ 
signing circuit court judges to work in the district court, 
which provision we have recommended. 

Mr. COX of Indiana. He must be a patriot. 

Mr. MOON of Pennsylvania. He is. 

Mr. Speaker, there is one other feature of this bill that re¬ 
quires some explanation in these opening remarks. The great 
expansion of the Federal territory, the opening of new sections 
of the country, and the stupendous increase in our population 
has greatly increased the business of the Federal judiciary. 
The increased popularity of these courts and their growing 
adaptation to the commercial needs of the people has made it 
necessary for Congress from time to time to make new judicial 
districts, to subdivide these districts into what are known as 
divisions, and finally to designate a number of places in these 
divisions where the district and circuit court should be held. 
Laws of this kind are now passed at almost every session of 
Congress and have been for a number of years. 

Your committee found upon an examination of the statutes 
that various provisions differing in character were found in 
these laws. Some of these provisions were already covered by 
70530—0473 


21 


existing general law upon the subject; others were not. In 
some instances the law creating the division or designating the 
place for holding court would provide where suits of a local 
nature should be brought; where processes should be served; 
where prosecution for crime should be instituted and how suits 
might be transferred from other divisions for prosecution. In 
certain other acts would be found provisions for the removal of 
civil cases from one division to another; prescribing the time 
and manner of removal; in others would be found special pro¬ 
visions for the disposal of pending civil and criminal cases in 
the event of the creation of a new division or a new place for 
holding court; in some acts would be found provisions preserv¬ 
ing liens upon property acquired prior to the passage of the 
act; in other cases these special acts would in particular in¬ 
stances make special provision respecting the drawing of juries 
and various other matters incidental to local procedure. Your 
committee has eliminated all these special provisions, and has 
recommended a new section of law of general application cover¬ 
ing all these subjects. The effect of these new provisions recom¬ 
mended by this bill will be to establish uniformity of practice 
throughout the country, and will make it entirely unnecessary 
for Congress in the future, when new divisions and new places 
for holding court are provided, to carry into the bill any of these 
details. 

The general law provides for one clerk of the court in 
each judicial district. In 8 of the 77 judicial districts em¬ 
braced within the States special provision is made for more 
than one clerk. Each of these clerks is an independent clerk 
entitled to the maximum compensation allowed a single clerk 
of each of the 70 districts. In one of the districts of the State, 
for instance, there is a provision for 6 separate clerks, each 
of whom is entitled to receive out of the fees received a compen¬ 
sation of $3,500 a year, or six times the amount that would be 
retained by one clerk. In this same district the same man is 
clerk of the circuit and district court at five places, thus en¬ 
titling him to a maximum compensation of $35,000 per annum 
if the fees collected should be sufficient to reach that sum. 

Mr. MANN. How is that? 

Mr. MOON of Pennsylvania. Because they are clerks of both 
the circuit and district courts, and they may receive their limit 
of $3,500 in each one of those capacities. And in addition to 
that I am informed there are a great many of the clerks that 
get a great deal in addition from the naturalization fees, which 
are not included in that limitation. 

It seemed to your committee that no good reason existed why 
there should be more than one clerk in any of the districts of 
the United States. We have therefore made provision respect¬ 
ing clerk uniform and have provided for the proper transaction 
of business by a provision for the appointment of deputy clerks, 
wherever the same may be necessary, the necessity for these 
deputy clerks being left to the discretion and judgment of the 
judge of the district. 

In some districts, however, where several divisions existed 
and where Congress after mature deliberation has deemed it 
necessary to provide for the residence of a clerk or marshal at 
a particular place in the division, we have carried that provision 
in this bill. 

70530—9473 


22 


Mr. Speaker, I have occupied the attention of the House for a 
long time. I have set before you our recommendations for the 
improvement of our judicial system and I have given you my rea¬ 
sons therefor. Permit me, then, in conclusion, to recapitulate 
briefly: We seek to accomplish by this bill what the House tried 
to accomplish by the bill of April, 1890, and wbat all of our sub¬ 
sequent experience has demonstrated ought to have been accom¬ 
plished at that time. We propose here to revise and codify the 
laws relating to the judiciary. In the creation of the Federal 
court we have omitted entirely the circuit court; we have con¬ 
ferred all of the original jurisdiction arising under the Consti¬ 
tution of the United States and the acts of Congress made pur¬ 
suant thereto and all other jurisdiction cognizable in courts of 
first instance upon the district court; we have continued the 
circuit court of appeals as it now exists, as it was created by the 
act of 1891 and amended by subsequent acts of Congress, and 
left the jurisdiction of the Supreme Court unchanged. 

The special courts recently created by the several acts of 
Congress—the Customs Court, the Commerce Court, and the 
previously existing Court of Claims, created by the act of 
1855—are reported here without change. The organization, 
jurisdiction, and procedure in these courts are specially pro¬ 
vided in the act of their creation and are reported by the com¬ 
mittee as they so exist. But the courts of general jurisdiction, 
if this bill becomes law, will, I repeat, be one court of original 
jurisdiction, one intermediate court of appeal, and one supreme 
court of final jurisdiction. [Applause.] I ask to proceed with 
the reading of the bill. 

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